Hukum Perdata

                                                       Civil Code on case

1. The fifth legal issues

Article 60 the corporation law mentions that the validity of share pledge agreement is made by notification to the corporation issuing the said pledged shares. With regard to share registered and traded at stock market, article 1.1. juncto article 3.6.1 of regulation issued by securities custodian centre says that a person registered as the owner of securities account may encumber his securities by way of making application to the securities custodian centre. Furthermore article 3.6.2. KSEI mentions that encumbered securities must be registered at security account and such encumbered securities can not be traded for settlement of security trading. My critique to his regulation is that the debtor- pledgor is still has authority to deregister such pledge of shares and therefore it undermine the interest of creditor- pledgee.

According to my opinion since the nature of pledge is accessory/independent to the main contract such as loan agreement. It is necessary for the creditor to confirm its debtor that as long as the debt has not been paid up then the pledge of share shall be considered still exist and valid even though the debtor deregisters it from security account. Alternatively, article 3.6.2 regulation of central custodian centre shall be amended that in case the debtor wants to deregister such pledge of shares he is required to obtain consent from his creditor.

Concerning the execution of pledged property by banks, article 6 letter K of the banking law no. 7 year 1996 mentions that in the event of default the bank may purchase such collateral by auction and it must cash it as soon as possible. However when the pledged shares are registered at capital market and stock exchange, the banks face fluctuation of price. More over due to monetary crisis the value of pledge share will be substantially decrease and therefore it is not necessary for banks to cash it as soon as possible. In my opinion in case the pledge shares are registered in capital market banks may sell the pledge share trough two expert broker under article 1155 paragraph 2 of the civil code without auction. Banks and debtors have similar interest to wait and to have the price of share increase before selling it. The price of shares depend on market price at stock market and therefore it does not constitute appropriation.

However in case Bank IFI versus Ir. Fadel Muhammad, the supreme court held that the conduct of bank IFI took over without auction PT Bukaka shares that registered at stock exchange and did not cash it as soon as possible constitutes a tort violating article 6 letter k of the banking law and article 1154 of the civil code and therefore, it constituted appropriation. My critique to the supreme court verdict that monetary crisis is a matter of force majeure and according to the supreme court verdict dated 11 may 1955 that in case the obligation to pay debt is influenced by monetary crisis then the creditor and the debtor bears the risk equally 50-50. Bank IFI conduct’s did not constitute tort and appropriation, since it based on article 1152 paragraph 2 of the civil code and result of the sale was determined by market price at the stock exchange.

2. the sixth legal issue

Sale under article 1156 paragraph one is a method of sale other than public auction set out under article 1155 of the civil code. Based on article 1156 of the civil code the pledge may seek and to obtain a court order or ruling stipulating an alternative method of sale and then proceed to sell the pledge property according to the manner as stipulated by the court in the court order and use the proceeds of sale to settle the outstanding debt, interest and cost incurred. According to Fred BG Tumbuan and J. Satrio article 1156 is mandatory in nature and can not be waived by the parties. It is both a right conferred on the pledge as well as requirement to be meet by the pledge. That every pledge has the right to request the judge determine and stipulate in a court order the manner or method in which he can proceed to sell the pledge property without public auction. Moreover according to Fred BG Tumbuan, in the situation where the pledgor and pledgee have not agree to an alternative method of sale other than by way of public auction, still as provided for in article 1156 the pledge can proceed to ask the court to allow it to sell the pledged property such as by way of private sale.

Furthermore, Fred BG Tumbuan mentioned that in Beckkett PTE LTD case where the pledgor and pledgee have expressly agreed between themselves to a particular method of sale by the pledge other than public auction, the following points are to be noted: first, such agreement between the pledgor and pledgee to an alternative method of sale is permitted under article 1155 and 1156 of the civil code. Secondly upon the default of the pledgor, the pledgee is still required under article 1156 paragraph one to proceed to obtain a court order permitting the said agreed alternative method of sell. Thirdly, where the agreement between the pledgor and the pledge as to alternative method of sale is already in existence, that agreement forms the basis of the request of the pledge to the court for a court ruling or order stipulating that he may so proceed by the method of selling in question.